DR. SWATI TOMAR, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, JAIPUR

ITA 147/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5140 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 08-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA DHK
• Assessee Lawyers: G M MEHTA
• Keywords: Unexplained investment; Gift; Revision of order; Search and seizure; Cost of acquisition; Block assessment; Revised return; Reassessment proceedings
• Section: 271(1)(c); 143(3); 153A; 139(5); 148; 132; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA -@ ITA NO. 147/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2013-14 DR. SWATI TOMAR, B-4, GOVIND MARG, ADARSH NAGAR, JAIPUR- 302004 C UKE VS. A.C.I.T., CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AMNPS 6834 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA -@ ITA NO. 148/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2013-14 DR. ANURAG TOMAR, B-4, GOVIND MARG, ADARSH NAGAR, JAIPUR- 302004 C UKE VS. A.C.I.T., CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AAVPT 6050 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI G.M. MEHTA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT-DR) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 09/08/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 20/08/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE ASSESSEES AGAINST THE SEPARATE ORDERS OF LD.CIT(A)-IV, JAIPUR DATED 03/12/2018 FOR THE A.Y. 2013-14 IN ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 2 THE MATTER OF ORDER PASSED U/S 143(3) READ WITH SECTION 153A OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. COMMON ISSUES HAVE BEEN INVOLVED IN BOTH THE APPEALS, THEREFORE, FOR THE SAKE OF CONVENIENCE AND BREVITY, BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DECIDED BY PASSING CONSOLIDATED ORDER. 3. FIRSTLY, WE TAKE ITA NO. 147/JP/2019 FOR THE A.Y. 2013-14 WHEREIN FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: 1. THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS.13,73,372/- BY TREATING IT AS UNDISCLOSED PURCHASE PRICE OF SOCIETY PLOT NO. B-142 & B-143, SHIVAJI NAGAR, NEVTA, JAIPUR IGNORING THE FOLLOWING FACTS: (II) THAT RS.13,73,372/- IS THE VALUE ADOPTED BY SUB- REGISTRAR FOR RE-ALLOTMENT OF BOTH THE PLOTS TO THE ASSESSEE HERSELF THROUGH JDA (JAIPUR DEVELOPMENT AUTHORITY) THAT TOO AT NOMINAL REGISTRATION CHARGES FOR THE REASON THAT BOTH THESE PLOTS WERE ALREADY OWNED BY THE ASSESSEE BUT AS PER PRESCRIBED PROCEDURE, SHE HAD TO SURRENDER THEM IN FAVOUR OF JDA FOR CONVERSION IN URBAN/RESIDENTIAL PLOTS. (III) DURING THE COURSE OF ACTION U/S. 132 OF IT ACT AT THE RESIDENCE OF ASSESSEE AND OTHER RELATIVES, NO INCRIMINATING MATERIAL OR OTHER DOCUMENTS EVIDENCING ANY PAYMENT OVER AND ABOVE THE PURCHASE PRICE OF BOTH THE SOCIETY PLOTS WAS FOUND AND THEREFORE THERE WAS NO JUSTIFICATION IN SUSTAINING THE ADDITION; (IV) THAT THE BOTH THE ABOVE REFERRED PLOTS OF SOCIETY WERE SOLD AFTER CONVERSION FOR RS.3,75,000 EACH ON 06.10.2016 (DLC RATE RS.3,18,825/- FOR EACH PLOT OF LAND). ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 3 (V) THAT WITHOUT PREJUDICE TO ABOVE SUB-GROUNDS, LD. CIT (A) WAS NOT JUSTIFIED IN NOT ALLOWING BENEFIT UNDER SECTION 48 OF IT ACT ON ACCOUNT OF COST INFLATION. 4. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT A SEARCH & SEIZURE OPERATION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT ON 30-10-2014 AT THE VARIOUS PREMISES OF NIMS GROUP. BUSINESS/RESIDENTIAL PREMISES (HOTAM ADMINISTRATIVE BLOCK, NIMS UNIVERSITY, SHOBHA NAGAR, JAIPUR DELHI HIGHWAY, JAIPUR AND B-4, GOVIND MARG, ADARSH NAGAR, JAIPUR) OF THE ASSESSEE WAS ALSO COVERED. IN THE ORDER FRAMED U/S 143(3) READ WITH SECTION 153A OF THE ACT, THE A.O. OBSERVED THAT THE ASSESSEE HAD PURCHASED TWO PLOTS, PLOT NOS. B-142 AND B-143, SHIVAJI NAGAR, JAIPUR, ALLEGEDLY IN THE YEAR 1997. THE A.O. FURTHER OBSERVED THAT CERTAIN PLOTS IN SHIVAJI NAGAR, JAIPUR WERE CLAIMED TO HAVE BEEN PURCHASED IN THE YEAR 1997 AT A PURCHASE COST IN THE RANGE OF RS. 20,000-25,000. HOWEVER, IT WAS FOUND THAT THESE PLOTS APPEARED FOR THE FIRST TIME IN THE BALANCE SHEETS OF AY 2013-14 OF ALL THE TOMAR FAMILY MEMBERS WHO HAD ALLEGEDLY PURCHASED THESE PLOTS IN 1997. THE FOLLOWING ARE THE ASSESSEES WHO PURCHASED THE PLOTS IN SHIVAJI NAGAR, JAIPUR, ALLEGEDLY, IN 1997:- S. NO. NAME OF THE ASSESSEE PLOTS ADDRESSES 1. ANURAG TOMAR B-140 & B-141, SHIVAJI NAGAR, JAIPUR 2. SWATI TOMAR B-142 & B-143, SHIVAJI NAGAR, ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 4 JAIPUR 3. SHOBHA TOMAR B-144 & B-145, SHIVAJI NAGAR, JAIPUR 4. SURABHI TOMAR B-146 SHIVAJI NAGAR, JAIPUR 5. ESHAN SHARMA B-147, SHIVAJI NAGAR, JAIPUR 6. PALLAVI TOMAR B-148, SHIVAJI NAGAR, JAIPUR 7. AMIT RANA B-149, SHIVAJI NAGAR, JAIPUR THEREFORE, TEN PLOTS WERE PURCHASED IN SHIVAJI NAGAR BY SEVEN ASSESSEES OF THE TOMAR FAMILY. IN THE BALANCE SHEET FOR AY 2013-14, ALL OF THE ABOVE ASSESSEES HAVE SHOWN THESE PLOTS TO HAVE BEEN PURCHASED IN 1997, BUT ON THE CONTRARY, THESE PLOTS ACTUALLY APPEARED FOR THE FIRST TIME IN THE BALANCE SHEET OF AY 2013-14 ONLY. THIS CLEARLY IMPLIED THAT THESE PLOTS HAD ACTUALLY BEEN PURCHASED IN AY 2013-14 ONLY. IT WAS FOUND AS A RESULT OF THE ENQUIRIES CONDUCTED DURING THE ASSESSMENT PROCEEDINGS THAT ONLY FOR THE PURPOSE OF HIDING THE UNDISCLOSED INVESTMENT IN THESE PLOTS, THE BACK DATING OF ALLOTMENT LETTERS (PATTA) WAS DONE BY THEM, WITH THE COLLUSION OF THE BABA RN GAUR GRIH NIRMAN SAHKARI SAMITI, WHO HAD ISSUED THESE ALLOTMENT LETTERS. LATER, AFTER THE PURCHASE IN AY 2013-14, ALL THE ABOVE ASSESSEES GOT THESE PLOTS REGISTERED WITH THE JAIPUR DEVELOPMENT AUTHORITY (JDA) AND CLAIMED THE `PATTA' OF THESE PLOTS. FOR THE PURPOSE OF TAXABILITY OF THIS UNDISCLOSED INVESTMENT, THE REGISTERED VALUE OF THESE PLOTS AS PER THE JDA PATTA AND THE SUB-REGISTRAR, JAIPUR-IV, NEEDS TO BE TAKEN. JUST AS IN THE CASE OF OTHER ASSESSES OF THE TOMAR FAMILY, EVEN IN ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 5 THE CASE OF THE ASSESSEE, THE SAID PROPERTY APPEARED FOR THE FIRST TIME IN THE BALANCE SHEET OF AY 2013-14. ALSO, IT WAS FOUND THAT THE ASSESSEE GOT MARRIED TO SHRI ANURAG TOMAR LATER THAN 1997, WHEREAS SHE CLAIMED THE PURCHASE OF PLOT NOS. B-142 AND B-143, JUST ADJACENT TO PLOT NOS. B-140 AND B-141 OF SHRI ANURAG TOMAR, WAY BACK IN 1997. 5. AFTER REFERRING VARIOUS ENQUIRIES MADE WITH REFERENCE TO THE PATTAS OF PLOT NO. B-142 AND B-143, THE A.O. OBSERVED AS UNDER: THE REGISTERED VALUE OF RS. 6,86,686/- OF PLOT NO. B-142 AND RS. 6,86,686/-OF PLOT NO. B-143 IS BEING TAKEN FOR THE REASON THAT THE PURCHASE COST HAS BEEN CLAIMED BY THE ASSESSEE AT A MINISCULE RS. 20,116/- AND RS. 18,855/- FOR PLOT NOS. B-142 AND 143 RESPECTIVELY. THERE IS NO WAY IN WHICH IT CAN BE ASCERTAINED THAT ONLY THIS COST WAS PAID BY THE ASSESSEE FOR THE PURCHASE OF THE SAID PLOTS. IT WAS ONLY TO DEFLATE THE PURCHASE COST OF THIS PLOT THAT THE ASSESSEE OBTAINED THE BACK-DATED PATTAS FROM BABA RN GAUR, GRAH NIRMAN SAHAKARI SAMITI LTD. IF NOT, THEN THE REASON FOR FURNISHING FALSE INFORMATION DURING THE ASSESSMENT PROCEEDINGS HAS NOT BEEN FURNISHED BY THE ASSESSEE. FROM THE CIRCUMSTANTIAL EVIDENCE AVAILABLE, THE REASON IS THE INTENTION OF THE ASSESSEE TO DEFLATE THE PURCHASE COST. ACTUALLY, THE ASSESSEE HAS MADE AN UNDISCLOSED INVESTMENT OF RS. 6,86,686/-IN PLOT NO. B-142 AND RS. 6,86,686/- IN PLOT NO. B-143. THE FACT REMAINS THAT THE ASSESSEE OBTAINED BACK DATED RECEIPTS OF COST AND OTHER EXPENSES ALSO, AS ADMITTED BY HER IN HER SUBMISSION DATED 28-11-2016. THE COST IN THESE RECEIPTS WAS PURPOSELY DEFLATED. THEREFORE, AFTER THE ENQUIRIES DONE FROM THE STATE GOVERNMENT AUTHORITIES BY THIS OFFICE, THE LEASE DEED OBTAINED FROM THE SUB REGISTRAR, JAIPUR-IV CAN ONLY BE THE BASIS OF QUANTIFICATION OF THE UNDISCLOSED INVESTMENT BY THE ASSESSEE IN PLOT NOS. B-142 AND B-143, SHIVAJI NAGAR, JAIPUR. BASED ON THE ABOVE DISCUSSION, THE ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 6 UNDISCLOSED INVESTMENT OF RS. 6,86, 686/- IN PLOT NO. B-142 AND RS. 6,86,686/- IN PLOT NO. B-143, SHIVAJI NAGAR, JAIPUR, IS BEING ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR AY 2013-14, SINCE THESE PLOTS WERE PURCHASED BY THE ASSESSEE IN FY 2012-13. 6. BY THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE ACTION OF THE A.O. BY OBSERVING AS UNDER: 5.2 ON MERITS OF THE ADDITION MADE THE AO HAS DISCUSSED ELABORATELY THE FACTS AND INQUIRIES CONDUCTED IN PARA 5, SPECIFICALLY PARA 5.3 OF THE ASSESSMENT ORDER. SINCE THEY ARE NOT REBUTTED FACTUALLY, I AM OF THE VIEW THE ADDITION MADE BY THE AO ARE SUSTAINABLE. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ADDITION OF RS.13,73,372/- IS CONFIRMED. APPELLANT'S APPEAL IS DISMISSED. 7. THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE ITAT AGAINST THE ORDER OF THE LD. CIT(A). 8. AS PER THE WRITTEN SUBMISSIONS PLACED BEFORE US, THE LD AR OF THE ASSESSEE HAS ARGUED THAT DURING THE COURSE OF SEARCH, PATTAS OF TWO CONVERTED PLOTS OF LAND (PLOT NO. B-142 & B-143 AT SHIVAJI NAGAR, VILLAGE NEWTA, TEHSIL SANGANER), ORIGINALLY SOLD AS BACK DATED UNAPPROVED PLOTS BY HOUSING SOCIETY BUT IN F.Y.2012-13 WERE FOUND. BOTH THESE PLOTS WERE GOT CONVERTED INTO URBAN PLOTS BY THE ASSESSEE THROUGH JAIPUR DEVELOPMENT AUTHORITY (JDA) IN MARCH 2014. ON FINDING SUCH DOCUMENTS, ADDITION OF RS.13,73,372/- ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 7 (RS.6,86,686/- FOR EACH PLOTS OF LAND, WHICH WAS THE AMOUNT FIXED BY JDA FOR RE-ALLOTMENT OF THE SAME PLOTS IN ASSESSEE'S NAME, THROUGH SUB-REGISTRAR IN MARCH 2014 AT NOMINAL REGISTRATION AMOUNT) WAS MADE/SUSTAINED BY BOTH LOWER AUTHORITIES AS UNEXPLAINED PAYMENTS BY ASSESSEE IN PURCHASING BOTH PLOTS IN A.Y. 2013-14. 9. THE LD AR HAS FURTHER SUBMITTED THAT RS.13,73,372/- IS THE VALUE ADOPTED BY SUB-REGISTRAR FOR RE-ALLOTMENT OF BOTH THE PLOTS TO ASSESSEE HIMSELF THROUGH JDS (JAIPUR DEVELOPMENT AUTHORITY) THAT TOO AT NOMINAL REGISTRATION CHARGES FOR THE REASON THAT BOTH THESE PLOTS WERE ALREADY OWNED BY THE ASSESSEE BUT AS PER PRESCRIBED PROCEDURE, HE HAD TO SURRENDER THEM IN FAVOUR OF JDA FOR CONVERSION IN URBAN/RESIDENTIAL PLOTS. 10. AS PER THE LD AR, T WO UNAPPROVED SOCIETY PLOTS OF LAND (PLOT NO. B-142 & PLOT NO. B-143) WERE PURCHASED BY THE ASSESSEE IN THE YEAR 201213 (WITH BACKDATED PATTAS OF 1997). ON BOTH THE PLOTS, ASSESSEE HAD INCURRED FOLLOWING EXPENSES/ PAYMENTS IN GETTING THEM CONVERTED INTO URBAN PLOT OF LAND: PLOT NO. B-142 (293.33 SQ. YARDS ) S.NO. DATE/YEAR HEAD OF PAYMENT AMOUNT P.B. PAGE 1. 2012-13 COST OF PLOT (TO HOUSING SOCIETY) 20,116 6 2. 28.02.2014 REGULARIZATION ETC TO JDA 14,667 7 ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 8 3. 03.03.2014 LEASE DEED STAMPS TO JDA 27,480 8 4. 14.03.2014 REGISTRATION CHARGES 9,928 9 5. 2012-15 OTHER EXPENSES & COST 5,000 - COST/PAYMENTS IN CONVERSION OF PLOT INTO URBAN PLOT 77,191 PLO T NO, B - 143 (293.33 SO. YARDS) S.NO. DATE/YEAR HEAD OF PAYMENT AMOUNT P.B. PAGE 1. 2012-13 COST OF PLOT (TO HOUSING SOCIETY) 18,855 10 2 28.02.2014 REGULARIZATION ETC TO JDA 14,667 11 3.. 03.03.2014 LEASE DEED STAMPS TO JDA 27,480 12 4. 14.03.2014 REGISTRATION CHARGES 9,928 13 5. 2012-15 OTHER EXPENSES & COST 5,000 .. COST/PAYMENTS IN CONVERSION OF PLOT INTO URBAN PLOT 75,930 HOWEVER, WITHOUT FINDING ANY INCRIMINATING MATERIAL OR OTHER EVIDENCE DURING THE COURSE OF SEARCH (ON 30.10.2014) EVIDENCING ANY UNEXPLAINED INVESTMENTS IN PURCHASE OF ABOVE REFERRED PLOTS, BOTH THE LOWER AUTHORITIES MADE/SUSTAINED ADDITION OF RS.13,73,372/-. 11. AS PER THE LD AR, THE AMOUNT FIXED FOR RE-ALLOTMENT OF SAME PLOTS OF LAND THROUGH THE OFFICE OF SUB-REGISTRAR WAS OF MARCH 2014 WHEREAS ADDITION WAS IN HANDS OF ASSESSEE WAS A.Y. 2013-14. 12. THE LD AR HAS FURTHER CONTENDED THAT THE BOTH THE PLOTS (PLOT NO. B-140 AND NO. B -H1), AFTER GETTING IT CONVERTED IN URBAN PLOT WERE SOLD BY THE ASSESSEE ON 6 TH OCTOBER 2016 FOR RS.5,75,000/- AND RS.3,75,000/-(EVALUATED PRICE RS.4,97,987/- AND RS.3,18,825/-) RESPECTIVELY (P.B. PAGE 14 TO 21), THE SALE PRICE IS MUCH LOWER THAN THE ADDITION MADE FOR THE RATE AT WHICH ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 9 JDA HAD RE-ALLOTTED THE SAME PLOT TO THE ASSESSEE THROUGH REGISTERED DEED. THEREFORE, THE RATES FIXED BY JDA CANNOT FORM BASIS OF PRESUMPTION THAT ASSESSEE HAD PAID HIGHER SUMS IN PURCHASE OF BOTH THE PLOTS. 13. WITHOUT PREJUDICE TO THE ABOVE CONTENTION, THE LD AR HAS SUBMITTED THAT SAID PLOTS OF LAND (NO.B-140 AND B-141) WERE KEPT BY THE ASSESSEE FOR MORE THAN THREE YEARS ON WHICH HE HAD MADE PAYMENTS TO JDA FOR CONVERSION INTO URBAN PLOT OF LAND. THE CONVERTED PLOTS OF LAND WERE SOLD BY THE ASSESSEE 6 TH OCTOBER 2016 BUT NO COST INFLATION U/S. 48 OF IT ACT WAS ALLOWED. THE DETAILS OF COST INCURRED, SALE PRICE AND DLC RATE OF BOTH PLOTS IS AS UNDER: PLOT NO. COST INCURRED (UP TO MARCH 2014) SOLD ON SALE PRICE DLC RATE ADDITION MADE B-142 77,191 06.10.2016 3,75,000 3,18,825 6 , 86,686 B-143 75,930 06.10.2016 3,75,000 3 , 18,825 6,86,686 TOTAL 1,53,121 _ 7,50,000 6 , 37,650 13,73,372 BOTH THE LOWER AUTHORITIES HAD NEITHER CONSIDERED THE COST OF PLOTS PAID BY THE ASSESSEE NOR PAYMENTS MADE TO JDA (COST OF IMPROVEMENT) FOR RE-ALLOTMENT IN ASSESSEE'S NAME THROUGH THE OFFICE OF SUB-REGISTRAR. EVEN LD. AO NOWHERE ADMITTED OR CONFIRMED ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 10 FINDING OF ANY INCRIMINATING MATERIAL OR OTHER EVIDENCE DURING COURSE OF SEARCH WHICH COULD JUSTIFY SUCH ADDITION. 14. THE LD AR HAS ALSO CONTENDED THAT THE ISSUE IS COVERED BY THE DECISION OF THE COORDINATE BENCH IN THE CASE OF SMT. PALLAVI TOMAR VS ACIT IN ITA NO. 1028/JP/2017 ORDER DATED 24/07/2018 WHEREIN SIMILAR ADDITION WAS DELETED ON THE PLEA THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. 15. ON THE OTHER HAND, THE LD DR HAS CONTENDED THAT THE INCRIMINATING DOCUMENT IN THE FORM OF PATTAS OF PLOT NO. B-142 AND B-143 WERE FOUND DURING THE COURSE OF SEARCH ON THE BASIS OF WHICH, THE A.O. MADE DETAILED ENQUIRY. IN TERMS OF THE ENQUIRY SO MADE, THE A.O. HAS CORRECTLY MADE ADDITION OF RS. 13,73,372/-. HE HAS FURTHER RELIED ON THE VARIOUS FINDINGS AND OBSERVATION OF THE A.O. 16. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM THE RECORD THAT DURING THE COURSE OF SEARCH AT THE RESIDENCE OF THE ASSESSEE, PATTAS OF TWO PLOTS NO. B-142 AND B-143, SHIVAJI NAGAR, VILLAGE NEWTA, TEHSIL- SANGANER, JAIPUR WAS FOUND. THE A.O. MADE DETAILED ENQUIRY WITH REGARD TO PATTA OF THESE TWO PLOTS. IT WAS ALLEGED THAT THESE PLOTS WERE ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 11 PURCHASED IN THE YEAR 1997 AT A COST RANGING BETWEEN RS. 22,000/- TO RS.25,000/-. HOWEVER, IT WAS NOT FOUND RECORDED IN THE REGULAR BOOKS OF ACCOUNT IN THE YEAR OF PURCHASE. THE A.O., THEREFORE, CONCLUDED THAT THESE PLOTS WERE ACTUALLY PURCHASED IN THE A.Y. 2013-14 UNDER CONSIDERATION. AFTER PURCHASE OF THESE PLOTS, THE ASSESSEE GOT THESE PLOTS REGISTERED WITH THE JAIPUR DEVELOPMENT AUTHORITY (JDA). FOR THE PURPOSE OF TAXABILITY OF THESE UNDISCLOSED INVESTMENTS, THE A.O. HAS TAKEN REGISTERED VALUE OF THESE PLOTS AS PER THE JDA PATTA AND SUB-REGISTRAR, JAIPUR-4. THE ADDITIONS SO MADE WERE CONFIRMED BY THE LD. CIT(A). 17. IN THE FIRST GROUND OF THE APPEAL, THE ASSESSEE ALLEGED THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH, THEREFORE, NO ADDITION WAS WARRANTED. FOR THIS PURPOSE, HE PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH IN THE CASE OF SMT. PALLAVI TOMAR VS ACIT ORDER DATED 24/07/2018 BELONGING TO THE VERY SAME GROUP WHEREIN ADDITION SO MADE WAS DELETED BY THE TRIBUNAL. THE LD AR HAS ALSO RELIED ON THE DECISION OF THE LD. CIT(A) IN CASE OF THE OTHER FAMILY MEMBERS OF THE SAME GROUP WHEREIN SIMILAR ADDITIONS WERE DELETED BUT REVENUE WAS NOT IN APPEAL BEFORE THE TRIBUNAL. 18. WE HAD CAREFULLY GONE THROUGH THE ORDER OF THE COORDINATE BENCH IN THE CASE OF SMT. PALLAVI TOMAR AS WELL AS ORDER PASSED BY THE LD. ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 12 CIT(A) IN CASE OF DR. SURABHI TOMAR, DR. ESHAR SHARMA AND AMIT RANA OF THE SAME GROUP AND FOUND THAT THE ADDITIONS WERE DELETED ON THE PLEA THAT THE ASSESSMENTS FOR THOSE YEARS WERE NOT PENDING AS ON THE DATE OF SEARCH AND THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THEREFORE, THE ADDITIONS WERE DELETED BY THE TRIBUNAL AFTER OBSERVING AS UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS PURUSED THE MATERIAL AVAILABLE ON RECORD. A SEARCH AND SEIZURE ACTION WAS CARRIED OUT IN CASE OF THE ASSESSEES GROUP ON 30.10.2014. THE ORIGINAL RETURN OF INCOME FOR THE ASSESSMENT YEAR WAS FILED U/S 139(1) ON 23.01.2014 AND THE LAST DAY OF ISSUING NOTICE SECTION 143(2) HAD EXPIRED ON 30.09.2014 BEFORE THE DATE OF SEARCH I.E. 30.10.2014. THUS, IT IS CLEAR ASSESSMENT PROCEEDINGS WERE NOT PENDING ON 30.10.2014 I.E. THE DATE OF SEARCH. AS PER SECTION 153A OF THE ACT, ONCE A SEARCH AND SEIZURE ACTION IS CARRIED OUT, THE AO HAS TO ASSESS OR REASSESS THE TOTAL INCOME OF THE ASSESSEE IN RESPECT OF 6 YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH A SEARCH IS CONDUCTED OR REQUISITION IS MADE. IN CASE THE ASSESSMENT IS PENDING ON THE DATE OF SEARCH THE SAME SHALL BE ABATED AS PER PROVISO TO SECTION 153A(1) OF THE ACT AND THE AO IS FREE TO ASSESS THE INCOME OF THE ASSESSEE AS REGULAR ASSESSMENT. HOWEVER, IN CASE OF COMPLETED ASSESSMENT AND NOT ABATED DUE TO INITIATION OF SEARCH U/S 132 OR MAKING OF REQUISITION U/S 132A THE AO HAS TO REASSESS THE TOTAL INCOME OF THE ASSESSEE AND THEREFORE, THE ASSESSMENT ALREADY COMPLETED CAN BE TINKERED WITH OR DISTRUSTED UNTIL AND UNLESS INCRIMINATING MATERIAL IS FOUND AND SEIZED DURING THE COURSE OF SEARCH OR REQUISITION AS CASE MAY BE INDICATING UNDISCLOSED INCOME OF THE ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 13 ASSESSEE. THEREFORE, THE SCOPE AND JURISDICTION OF THE AO TO REASSESS THE TOTAL INCOME OF THE ASSESSEE U/S 153A IS LIMITED ONLY TO THE EXTENT OF THE INCOME DISCLOSED BY THE INCRIMINATING MATERIAL FOUND AND SEIZED DURING THE SEARCH AND SEIZURE ACTION. THE ASSESSING OFFICER HAS REASSESSED THE INCOME OF THE ASSESSEE BY MAKING ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT WITHOUT MAKING ANY REFERENCE TO ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. THE AO HAS REFERRED TO THE DISCLOSURE IN THE FINANCIAL STATEMENTS OF THE ASSESSEE AND THE SUBSEQUENT ENQUIRIES CONDUCTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HAD MADE THE ADDITION. THEREFORE, THE ADDITION MADE BY THE AO FOR THE ASSESSMENT YEAR COMPLETED U/S 153A IS UNDISPUTEDLY NOT BASED ON ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT. ONCE, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S 153A WITHOUT ANY REFERENCE TO THE INCRIMINATING MATERIAL FOUND THEN, NO ADDITION CANNOT BE MADE TO THE RETURNED INCOME OF THE ASSESSEE. 6. THE HONBLE DELHI HIGH COURT IN CASE OF CIT V. KABUL CHAWLA VIDE WHILE CONSIDERING AN IDENTICAL ISSUE HAS HELD IN PARA 37 AND 39 AS UNDER:- 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 14 AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL. ' V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII . COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 39. THE QUESTION FRAMED BY THE COURT IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 7. A SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE JURISDICTION HIGH COURT IN CASE OF JAI STEEL INDIA V ACIT (SUPRA) WHEREIN IT HAS BEEN HELD IN PARA 22 TO 30 AS UNDER:- ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 15 22. IN THE FIRM OPINION OF THIS COURT FROM A PLAIN READING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SECTIONS 132 AND 132A OF THE ACT, IT IS APPARENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATED IN TERMS OF II PROVISO TO SECTION 153A OF THE ACT, THE AO ACTS UNDER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; (B) REGARDING OTHER CASES, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND (C) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THOUGH SUCH A CLAIM BY THE ASSESSEE FOR THE FIRST TIME UNDER SECTION 153A OF THE ACT IS NOT COMPLETED, THE CASE IN HAND, HAS TO BE CONSIDERED AT BEST SIMILAR TO A CASE WHERE IN SPITE OF A SEARCH AND/OR REQUISITION, NOTHING INCRIMINATING IS FOUND. IN SUCH A CASE THOUGH SECTION 153A OF THE ACT WOULD BE TRIGGERED AND ASSESSMENT OR REASSESSMENT TO ASCERTAIN THE TOTAL INCOME OF THE PERSON IS REQUIRED TO BE DONE, HOWEVER, THE SAME WOULD IN THAT CASE NOT RESULT IN ANY ADDITION AND THE ASSESSMENTS PASSED EARLIER MAY HAVE TO BE REITERATED. 23. THE RELIANCE PLACED BY THE COUNSEL FOR THE APPELLANT ON THE CASE OF ANIL KUMAR BHATIA (SUPRA) ALSO DOES NOT HELP THE CASE OF THE ASSESSEE. THE RELEVANT EXTRACT OF THE SAID JUDGMENT READS AS UNDER: '19. UNDER THE PROVISIONS OF SECTION 153A, AS WE HAVE ALREADY NOTICED, THE ASSESSING OFFICER IS BOUND TO ISSUE NOTICE TO THE ASSESSEE TO FURNISH RETURNS FOR EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH OR REQUISITION WAS MADE. ANOTHER SIGNIFICANT FEATURE OF THIS SECTION IS THAT THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE AFORESAID YEARS. THIS IS A SIGNIFICANT DEPARTURE FROM THE EARLIER BLOCK ASSESSMENT SCHEME IN WHICH THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSESSING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASSESS THE 'TOTAL INCOME' OF THE SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 16 20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS, EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE, HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME, TAKING NOTE TO THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB-SECTION (1) OF SECTION 153A OPENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 148 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MADE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, IF NEED BE. 21. NOW THERE CAN BE CASES WHERE AT THE TIME WHEN THE SEARCH IS INITIATED OR REQUISITION IS MADE, THE ASSESSMENT OR REASSESSMENT PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF THE SIX ASSESSMENT YEARS MENTIONED ABOVE, MAY BE PENDING. IN SUCH A CASE, THE SECOND PROVISO TO SUB-SECTION (1) OF SECTION 153A SAYS THAT SUCH PROCEEDINGS 'SHALL ABATE'. THE REASON IS NOT FAR TO SEEK. UNDER SECTION 153A, THERE IS NO ROOM FOR MULTIPLE ASSESSMENT ORDERS IN RESPECT OF ANY OF THE SIX ASSESSMENT YEARS UNDER CONSIDERATION. THAT IS BECAUSE THE ASSESSING OFFICER HAS TO DETERMINE NOT MERELY THE UNDISCLOSED INCOME OF THE ASSESSEE, BUT ALSO THE 'TOTAL INCOME' OF THE ASSESSEE IN WHOSE CASE A SEARCH OR REQUISITION HAS BEEN INITIATED. OBVIOUSLY THERE CANNOT BE SEVERAL ORDERS FOR THE SAME ASSESSMENT YEAR DETERMINING THE TOTAL INCOME OF THE ASSESSEE. IN ORDER TO ENSURE THIS STATE OF AFFAIRS NAMELY, THAT IN RESPECT OF THE SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE YEAR IN WHICH THE SEARCH TOOK PLACE THERE IS ONLY ONE DETERMINATION OF THE TOTAL INCOME, IT HAS BEEN PROVIDED IN THE SECOND PROVISO OF SUB-SECTION (1) OF SECTION 153A THAT ANY PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT OF THE ASSESSEE WHICH ARE PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING REQUISITION 'SHALL ABATE'. ONCE THOSE PROCEEDINGS ABATE, THE DECKS ARE CLEARED, FOR THE ASSESSING OFFICER TO PASS ASSESSMENT ORDERS FOR EACH OF THOSE SIX YEARS DETERMINING THE TOTAL INCOME OF THE ASSESSEE WHICH WOULD INCLUDE BOTH THE INCOME DECLARED IN THE RETURNS, IF ANY, FURNISHED BY THE ASSESSEE AS WELL AS THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 17 THE SEARCH OR REQUISITION. THE POSITION THUS EMERGING IS THAT THE SEARCH IS INITIATED OR REQUISITION IS MADE, THEY WILL ABATE MAKING WAY FOR THE ASSESSING OFFICER TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE IN WHICH THE UNDISCLOSED INCOME WOULD ALSO BE INCLUDED, BUT IN CASE WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS HAVE ALREADY BEEN COMPLETED AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND SUCH ORDERS SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. IN THIS LATTER SITUATION, THE ASSESSING OFFICER WILL REOPEN THE ASSESSMENTS OR REASSESSMENTS ALREADY MADE (WITHOUT HAVING THE NEED TO FOLLOW THE STRICT PROVISIONS OR COMPLYING WITH THE STRICT CONDITIONS OF SECTIONS 147, 148 AND 151) AND DETERMINE THE TOTAL INCOME OF THE ASSESSEE. SUCH DETERMINATION IN THE ORDERS PASSED UNDER SECTION 153A WOULD BE SIMILAR TO THE ORDERS PASSED IN ANY REASSESSMENT, WHERE THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT ORDER AND THE INCOME THAT ESCAPED ASSESSMENT ARE CLUBBED TOGETHER AND ASSESSED AS THE TOTAL INCOME. IN SUCH A CASE, TO REITERATE, THERE IS NO QUESTION OF ANY ABATEMENT OF THE EARLIER PROCEEDINGS FOR THE SIMPLE REASON THAT NO PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT WERE PENDING SINCE THEY HAD ALREADY CULMINATED IN ASSESSMENT OR REASSESSMENT ORDERS WHEN THE SEARCH WAS INITIATED OR THE REQUISITION WAS MADE.' (EMPHASIS SUPPLIED) 24. THE SAID JUDGMENT ALSO IN NO UNCERTAIN TERMS HOLDS THAT THE REASSESSMENT OF THE TOTAL INCOME OF THE COMPLETED ASSESSMENTS HAVE TO BE MADE TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH AND THE INCOME THAT ESCAPED ASSESSMENTS ARE REQUIRED TO BE CLUBBED TOGETHER WITH THE TOTAL INCOME DETERMINED IN THE ORIGINAL ASSESSMENT AND ASSESSED AS THE TOTAL INCOME. THE OBSERVATIONS MADE IN THE JUDGMENT CONTRASTING THE PROVISIONS OF DETERMINATION OF UNDISCLOSED INCOME UNDER CHAPTER XIVB WITH DETERMINATION OF TOTAL INCOME UNDER SECTIONS 153A TO 153C OF THE ACT HAVE TO BE READ IN THE CONTEXT OF SECOND PROVISO ONLY, WHICH DEALS WITH THE PENDING ASSESSMENT/REASSESSMENT PROCEEDINGS. THE FURTHER OBSERVATIONS MADE IN THE CONTEXT OF DE NOVO ASSESSMENT PROCEEDINGS ALSO HAVE TO BE READ IN CONTEXT THAT IRRESPECTIVE OF THE FACT WHETHER ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH, THE NOTICE AND CONSEQUENTIAL ASSESSMENT UNDER SECTION 153A HAVE TO BE UNDERTAKEN. 25. THE ARGUMENT OF THE LEARNED COUNSEL THAT THE AO IS ALSO FREE TO DISTURB INCOME, EXPENDITURE OR DEDUCTION DE HORS THE INCRIMINATING MATERIAL, WHILE MAKING ASSESSMENT UNDER SECTION 153A OF THE ACT IS ALSO NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION WHICH AS NOTICED ABOVE IS ESSENTIALLY IN CONTEXT OF SEARCH AND/OR REQUISITION. THE PROVISIONS OF SECTIONS 153A TO 153C CANNOT BE INTERPRETED TO BE A FURTHER INNINGS FOR THE AO AND/OR ASSESSEE BEYOND PROVISIONS OF SECTIONS 139 (RETURN ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 18 OF INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (INCOME ESCAPING ASSESSMENT) AND 263 (REVISION OF ORDERS) OF THE ACT. 26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD 'ASSESS' HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. 27. THE ALLAHABAD HIGH COURT IN SMT. SHAILA AGARWAL'S (SUPRA) HAS HELD AS UNDER: '19. THE SECOND PROVISO TO SECTION 153A OF THE ACT, REFERS TO ABATEMENT OF THE PENDING ASSESSMENT OR RE-ASSESSMENT PROCEEDINGS. THE WORD 'PENDING' DOES NOT OPERATE ANY SUCH INTERPRETATION, THAT WHEREVER THE APPEAL AGAINST SUCH ASSESSMENT OR REASSESSMENT IS PENDING, THE SAME ALONG WITH ASSESSMENT OR REASSESSMENT PROCEEDINGS IS LIABLE TO BE ABATED. THE PRINCIPLES OF INTERPRETATION OF TAXING STATUTES DO NOT PERMIT THE COURT TO INTERPRET THE SECOND PROVISO TO SECTION 153A IN A MANNER THAT WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS ARE COMPLETE, AND THE MATTER IS PENDING IN APPEAL IN THE TRIBUNAL, THE ENTIRE PROCEEDINGS WILL ABATE. 20. THERE IS ANOTHER ASPECT TO THE MATTER, NAMELY THAT THE ABATEMENT OF ANY PROCEEDINGS HAS SERIOUS CAUSES AND EFFECT IN AS MUCH AS THE ABATEMENT OF THE PROCEEDINGS, TAKES AWAY ALL THE CONSEQUENCES THAT ARISE THEREAFTER. IN THE PRESENT CASE AFTER DEDUCTING BOGUS GIFTS IN THE REGULAR ASSESSMENT PROCEEDINGS, THE PROCEEDINGS FOR PENALTY WERE DRAWN UNDER SECTION 271(1)(C) OF THE ACT. THE MATERIAL FOUND IN THE SEARCH MAY BE A GROUND FOR NOTICE AND ASSESSMENT UNDER SECTION 153A OF THE ACT BUT THAT WOULD NOT EFFACE OR TERMINATE ALL THE CONSEQUENCE, WHICH HAS ARISEN OUT OF THE REGULAR ASSESSMENT OR REASSESSMENT RESULTING INTO THE DEMAND OR PROCEEDINGS OF PENALTY.' (EMPHASIS SUPPLIED) THE SAID JUDGMENT WHICH ESSENTIALLY DEALS WITH SECOND PROVISO TO SECTION 153A OF THE ACT ALSO SUPPORTS THE CONCLUSION, WHICH WE HAVE REACHED HEREINBEFORE. ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 19 28. IT HAS BEEN OBSERVED BY THE HON'BLE SUPREME COURT IN K.P. VARGHESE V. ITO [1981] 131 ITR 597/7 TAXMAN 13 THAT 'IT IS WELL RECOGNIZED RULE OF CONSTRUCTION THAT A STATUTORY PROVISION MUST BE SO CONSTRUED, IF POSSIBLE THAT ABSURDITY AND MISCHIEF MAY BE AVOIDED. ' 29. THE ARGUMENT OF THE COUNSEL FOR THE APPELLANT IF TAKEN TO ITS LOGICAL END WOULD MEAN THAT EVEN IN CASES WHERE THE APPEAL ARISING OUT OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A), ITAT AND THE HIGH COURT, ON A NOTICE ISSUED UNDER SECTION 153A O F THE ACT, THE AO WOULD HAVE POWER TO UNDO WHAT HAS BEEN CONCLUDED UP TO THE HIGH COURT. ANY INTERPRETATION WHICH LEADS TO SUCH CONCLUSION HAS TO BE REPELLED AND/OR AVOIDED AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE (SUPRA). 30. CONSEQUENTLY, IT IS HELD THAT IT IS NOT OPEN FOR THE ASSESSEE TO SEEK DEDUCTION OR CLAIM EXPENDITURE WHICH HAS NOT BEEN CLAIMED IN THE ORIGINAL ASSESSMENT, WHICH ASSESSMENT ALREADY STANDS COMPLETED, ONLY BECAUSE A ASSESSMENT UNDER SECTION 153A OF THE ACT IN PURSUANCE OF SEARCH OR REQUISITION IS REQUIRED TO BE MADE. 8. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE ASSESSMENT HAS BEEN COMPLETED U/S153A WITHOUT ANY REFERENCE TO THE INCRIMINATING MATERIAL EVIDENCING ANY INVESTMENT OVER AND ABOVE DISCLOSED IN THE FINANCIAL STATEMENTS AND IN LIGHT OF THE BINDING PRECEDENTS AS CITED ABOVE, THE ADDITION MADE BY THE AO IS NOT SUSTAINABLE, THE SAME IS DELETED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 19. THUS, IT IS CLEAR FROM THE ABOVE DECISION OF THE COORDINATE BENCH THAT THE ADDITION WAS DELETED ON THE PLEA OF ASSESSMENT BEING NOT PENDING ON THE DATE OF SEARCH AND NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. HOWEVER, IN BOTH THE CASES BEFORE US I.E. DR. SWATI TOMAR AND DR. ANURAG TOMAR, ASSESSMENTS WERE PENDING. IN SO FAR AS IN CASE OF DR. SWATI TOMAR IS CONCERNED, THE RETURN FOR THE RELEVANT ASSESSMENT YEAR WAS FILED ON 04/6/2014 AND SIX MONTHS FOR THE ISSUE OF NOTICE U/S 143(2) OF THE ACT WAS NOT EXPIRED AND THE SEARCH TOOK PLACE ON ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 20 30/10/2014. SIMILARLY, IN THE CASE OF DR. ANURAG TOMAR, RETURN WAS FILED ON 30/05/2014, THE TIME PERIOD OF ISSUE OF NOTICE U/S 143(2) WAS VERY MUCH THERE IN SO FAR AS SEARCH WAS UNDERTAKEN ON 30/10/2014. THUS, WE FOUND THAT IN BOTH THESE CASES, ASSESSMENTS WERE ABATED MEANING THEREBY THESE WERE PENDING AS ON THE DATE OF SEARCH. WE FURTHER OBSERVE THAT DURING THE COURSE OF SEARCH, PATTAS OF THESE TWO PLOTS WERE FOUND AND THE AMOUNT PAID FOR ACQUISITION OF THESE PLOTS WERE NOT FOUND RECORDED IN THE BOOKS OF ACCOUNT. THE PATTAS OF THESE PLOTS CONSTITUTED INCRIMINATING MATERIAL, THEREFORE, THERE IS NO MERIT IN THE CONTENTION OF THE LD AR THAT THE ADDITION SHOULD BE DELETED BY FOLLOWING THE DECISION OF THE COORDINATE BENCH. SO FAR AS THE MERIT OF THE ADDITION IS CONCERNED, WE FOUND THAT THE A.O. HAS CORRECTLY TAKEN VALUE OF THESE PLOTS SO DETERMINED BY THE JDA, THE REGISTERED VALUE OF PLOTS AS PER JDA PATTAS AND SUB-REGISTRAR, JAIPUR-4. THUS, WE CONFIRM THE ADDITION SO MADE BY THE A.O. SUBJECT TO FURTHER DIRECTION TO THE A.O. TO REDUCE THIS ADDITION ONLY TO THE EXTENT OF ANY INVESTMENT, IF ANY, SHOWN BY THE ASSESSEE IN REGULAR BOOKS OF ACCOUNT BEFORE THE DATE OF SEARCH IN RESPECT OF ANY OF THESE PLOTS SO ACQUIRED. WE DIRECT ACCORDINGLY. 20. AS THE FACTS AND CIRCUMSTANCES IN THE CASE OF DR. ANURAG TOMAR IN ITA NO.148/JP/2019 ARE PARI MATERIA TO THE FACTS IN THE CASE OF ITA NO. ITA 147 & 148/JP/2019_ DR. SWATI TOMAR VS ACIT & ONE ANR. 21 147/JP/2019, FOLLOWING THE SAME REASONING GIVEN IN ITA NO. 147/JP/2019, WE ALSO CONFIRM THE ADDITION SO MADE IN THE CASE OF DR. ANURAG TOMAR. 21. IN THE RESULT, BOTH THESE APPEALS OF THE ASSESSEES ARE ALLOWED IN PART IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH AUGUST, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS [KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20 TH AUGUST, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- (I) DR. SWATI TOMAR, JAIPUR. (II) DR. ANURAG TOMAR, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT, CENTRAL CIRCLE-1, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 147 & 148/JP/2019) VKNS 'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR